The Right Way To End the ICC Impasse

The Right Way To End the ICC Impasse

The
United States incited international furor this week when it vetoed
renewal of the mandate for the United Nations Mission in Bosnia and
Herzegovina under consideration by the U.N. Security Council. The
United States expressed concern that the new International Criminal
Court (ICC) would attempt to prosecute U.S. soldiers who
participate in the peacekeeping operation even through the United
States has not ratified the ICC treaty.

The
U.S. veto should come as no surprise to ICC proponents. America's
serious objections to the ICC are well-known, and U.S.
representatives gave clear warning that it would consider vetoing
U.N. peacekeeping operations once the ICC entered into force.
President George W. Bush must fulfill his responsibility as
Commander in Chief to protect American soldiers and citizens from
the threat of spurious prosecution by a court that has no lawful
right to try and punish U.S. nationals. Unless a compromise can be
forged that satisfies America's deep concerns, U.S. participation
in and support for future U.N. peacekeeping operations is
uncertain.

To
end the impasse, the United States has proposed that the Security
Council determine whether individuals serving in a U.N.
peacekeeping operation may be brought before the ICC. This position
is fully supported by the U.N. Charter, which vests the Council
with responsibility for maintaining global peace and security. No
single state may authorize a U.N. mission, and no state or group of
states can interfere with its activities. Thus, only the Security
Council is in a position to determine whether criminal prosecution
of peacekeepers by the ICC may be appropriate. Otherwise, the ICC
would be in a position to interfere with the Council's authority
and obligations enshrined in the U.N. Charter, to which ICC nations
are party.

This
reasonable approach would allow the United States to veto
prosecutions it considers without merit, safeguarding Americans'
democratic rights while allowing the United States to continue
working with the U.N. on missions around the world. If such a
compromise is not forged, the Administration should end U.S.
participation in peacekeeping missions.

Source of
America's Concern. As an unaccountable legal bureaucracy
claiming the authority to arrest, prosecute, and punish nationals
from any country who are accused of war crimes, genocide, crimes
against humanity, and the undefined crime of aggression, the ICC
invites political manipulation. The United States must protect its
citizens from a court that would not observe such basic rights as
trial by a jury of one's peers, protection from double jeopardy,
and the right to confront one's accusers.

Under accepted norms of international law,
the ICC should not even be a U.S. concern, since the United States
has not ratified the treaty establishing it. Indeed, President Bush
has "unsigned" the Rome Statute, notifying the Secretary General of
the United Nations that the United States will not ratify it. A
bedrock principle of the international system is that treaties and
treaty organizations cannot be imposed on states without their
consent. The statute violates international law by claiming that
the ICC has authority to prosecute and punish the nationals of
countries that are not party to it.

President Bill Clinton waited until the
last possible day, December 31, 2000, to sign the statute,
expressing grave misgivings over that "flawed" treaty. His
reasoning was that America needed a voice in the deliberations over
the ICC's structure so that its serious concerns could be properly
addressed. But America's efforts to change the ICC's structure were
rejected by most of the other nations involved in the negotiations.
The threat became very real on July 1, 2002, with the Rome Statute
entering into force after the required 60 nations--many of them
undemocratic and few having a major role in enforcing international
peace--had ratified it.

In
May 2002, U.S. Ambassador to the United Nations John D. Negroponte
explained America's concerns when the U.S. voted to continue the
U.N. Mission of Support for East Timor. On June 20, White House
Press Secretary Ari Fleischer echoed those sentiments, stating that
"the United States is very concerned about U.S. forces on U.N.
peacekeeping missions, and that they may be subject to politically
motivated prosecutions by the ICC." Proponents of the ICC who chose
to ignore these warnings professed outrage when the United States
followed through on its concerns and acted to protect its citizens
on June 30.

The
debate is about nothing less than the fundamental question of where
ultimate authority lies--with national sovereignty, which holds the
only possibility of democratic accountability, or with
unaccountable and opaque international bureaucracies that have no
direct democratic link to the people over which they claim
jurisdiction. Given this question of first principles, President
Bush was right to state that the United States would not
reauthorize the Bosnia mission. The furor that arose obscures the
main imperative: U.S. military personnel must be protected from the
possibility of politically manipulated prosecution if the United
States is to participate in U.N. peacekeeping missions.

The Way
Forward. In an effort to overcome this impasse, the
Administration has proposed a 12-month immunity from ICC
prosecution for soldiers on U.N. peacekeeping missions who do not
represent countries that are party to the Rome Statute. This period
would be used to forge a compromise on using the Security Council
to arbitrate over potential cases that involve U.N. peacekeepers.
The ICC would be able to investigate and prosecute a case against a
peacekeeper only if the Security Council were to vote its
approval.

This
reasonable solution is consistent with the principles outlined in
the Rome Statute. By their nature, U.N. peacekeeping operations are
not authorized by a single state and are accountable to the
Security Council. Its members should be viewed collectively as the
authorizing body alone equipped to determine whether a criminal
investigation by another international body is appropriate. Such a
process, given an American veto possibility, would provide ample
opportunity for the United States to protect Americans while
participating in and supporting U.N. peacekeeping. If such a
sensible compromise is shunned, the Administration should continue
to veto renewals of peacekeeping extensions.

Conclusion. It is not in the interests
of the United States or the United Nations to perpetuate this
impasse. The United States has proposed a reasonable
compromise--placing the U.N. Security Council, as the ultimate
authorizing body, in a position to determine whether ICC
investigation of U.N. peacekeepers is appropriate. If other nations
truly believe the international system can enforce justice through
the ICC, they should not object to giving the international
institution charged with protecting international peace a say in
cases that come before it.

--John C. Hulsman,
Ph.D., is Research Fellow for European Affairs in the Kathryn
and Shelby Cullom Davis Institute for International Studies, and Brett D.
Schaefer is Jay Kingham Fellow in International Regulatory
Affairs in the Center for International Trade and Economics, at The
Heritage Foundation.